Women and Justice: Court: Supreme Court of Sweden

Domestic Case Law

B 990-11 Supreme Court of Sweden (2011)

Sexual violence and rape

A man who possessed 39 drawn pornographic images in manga style was acquitted from a charge of possession of child pornography on the grounds that holding this possession as illegal would unreasonably limit freedom of expression. Swedish child pornography laws outlaw actual photographic material as well as drawn images. The purpose of this law is to protect children from offensive materials, to avoid anyone using child pornography to snare children into sexual situations, and to protect their likeness being shared in pornographic materials. The court argued, however, that because a conviction would mean a restraint in the defendant’s freedom of expression, the court must present a serious reason for why pornographic manga-styled cartoon images actually have the potential to harm a child in any of these ways. Because the images were not made in any child’s likeness and because manga is an expression of Japanese culture, the court ruled that the restraint on the defendant’s freedom of expression would be too great if he were convicted and the images were held to constitute child pornography.



AD 1996 nr 79 Supreme Court of Sweden (1996)

Gender discrimination

"An employer may not discriminate against a person who, with respect to the employer,1. is an employee; 2. is enquiring about or applying for work; 3. is applying for or carrying out a traineeship; 4. is available to perform work or is performing work as temporary or borrowed labour. (…)"].  In AD 1996 nr 79 the Swedish Labour Court (Sw: Arbetsdomstolen) ruled that a municipality was applying a salary development system that constituted gender-based discrimination.  A female head of department had received, for four time periods, a lower wage than a male head of department who was employed by the same municipality. The municipality argued that the differences in salary were justified by differences in the two jobs.  However, the court rejected this claim, finding that during the last two time periods, the employees' jobs had in effect been equivalent.



AD 2011 nr 2 Supreme Court of Sweden (2011)

Gender discrimination

"An employer may not discriminate against a person who, with respect to the employer, 1. is an employee, 2. is enquiring about or applying for work, 3. is applying for or carrying out a traineeship, or 4. is available to perform work or is performing work as temporary or borrowed labour. (…)" Chapter 2 Section 1 of the Swedish Discrimination Act.]  A woman had applied for employment at the farm where she was doing an internship. During the internship the woman had had a miscarriage, which she told the farmer about. She was later denied employment. The farmer claimed that he denied her employment due to her insufficient capacity for work. However, the Swedish Labour Court (Sw: Arbetsdomstolen) found that the decision to deny the woman employment did not completely lack connection with a possible future pregnancy. Hence, Swedish Labour Court ruled that the denied employment constituted a violation of the Discrimination Act and granted the woman compensation for the damage suffered from the discrimination.



NJA 2004 s. 97 Supreme Court of Sweden (2003)

Domestic and intimate partner violence

"A person who commits criminal acts as defined in Chapters 3, 4 or 6 against another person having, or have had, a close relationship to the perpetrator shall, if the acts form a part of an element in a repeated violation of that person's integrity and suited to severely damage that person's self-confidence, be sentenced for gross violation of integrity to imprisonment for at least six months and at most six years. (…)" Chapter 4, Section 4 a, paragraph 2 of the Swedish Penal Code.]  The Supreme Court ruled that a couple had a close relationship, in the sense required by law, even though they both had access to their own separate accommodations. The court found that the couple was to be considered to be in an established relationship as they, for a longer period (a year and a half), spent time with each other in a way comparable to what may be the case in a cohabiting relationship or between spouses. It was further found that the perpetrator had battered the woman he had a relationship with at six occasions and that he had also been guilty of assault. The court ruled that the actions had violated the woman's integrity and suited to severely damage the woman's self-confidence. The perpetrator was sentenced for gross violation of integrity to eight months imprisonment.



NJA 2003 s. 144 Supreme Court of Sweden (2003)

Domestic and intimate partner violence

"A person who commits criminal acts as defined in Chapters 3, 4 or 6 against another person having, or have had, a close relationship to the perpetrator shall, if the acts form a part of an element in a repeated violation of that person's integrity and suited to severely damage that person's self-confidence, be sentenced for gross violation of integrity (…)." Chapter 4, Section 4 a, paragraph 2 of the Swedish Penal Code. The Supreme Court ruled that even though several assaults separately do not qualify as criminal acts as defined in Chapter 3, 4, or 6 of the Swedish Penal Code they may, if assessed together, be seen as seriously damaging to a person's self-confidence and the perpetrator may be sentenced for gross violation of a woman's integrity. In this case, a man had thrown a glass of juice in the face of the woman he lived with while she held their youngest child in her lap.  He also had assaulted her several times by, inter alia, kicking her legs and buttocks, taking firm grips of her neck, punching her neck and shoulder, stepping on her feet, knocking her over on the floor, taking her in a stranglehold, and threatening to kill her. Although only one of the assaults could be defined as a criminal act in accordance with Chapters 3, 4 or 6 of the Swedish Penal Code, the Supreme Court stated that it is necessary to take into account a person's entire situation when assessing gross violation of a woman's integrity. The Supreme Court further ruled that it is not necessary to establish that a person's self-confidence is actually injured but only that the acts are such as would typically lead to serious injury to a person's self-confidence.



International Case Law

NJA 2008 s. 1096 I and II Supreme Court of Sweden (2008)

Sexual violence and rape

["A person who, by violence or threat involving or appearing to the threatened person as imminent danger, forces the latter to have sexual intercourse or to engage in a comparable sexual act, shall be sentenced for rape (…)" Chapter 6, Section 1 of the Swedish Penal Code.]  The Supreme Court ruled on the distinction between a sexual act and sexual intercourse. Although the victim in this case was a child, the decision still gives some guidance with respect to crimes against adults. A man took an eight-year-old girl with him to a backyard, where he kept a firm hold of the girl and pulled her pants and panties down against her will. For a moment, the man pressed his penis in between the girl's buttocks, which inflicted certain pain to the girl. However, since the offense was brief and since the man had neither touched the girl's genitals nor anus, the act was not considered comparable with sexual intercourse. The man was convicted of sexual abuse of a child. (The distinction was important at the time but the legal definitions have since changed and even without sexual intercourse or penetration it would now be possible to convict someone for rape of a child.) [Decision on file with Avon Global Center]



NJA 2008 s. 482 Supreme Court of Sweden (2008)

Sexual violence and rape

["A person who, by violence or threat involving or appearing to the threatened person as imminent danger, forces the latter to have sexual intercourse or to engage in a comparable sexual act, shall be sentenced for rape (…)" Chapter 6, Section 1 of the Swedish Penal Code.] The Supreme Court found that the accused had committed rape when the man put his fingers into a sleeping woman's vagina. When the woman woke up she indicated that she was not interested in sexual intercourse with the man, whereupon he stopped his behavior. However, as the woman was asleep and thus in a helpless state when the man carried out the sexual act, he had unduly exploited her helplessness. The Supreme Court stated that the sexual offence was of such serious nature that it qualified as rape.  Acts such as forced sexual intercourse or other forms of forced penetration typically constitute the most offensive sexual assaults. [Decision on file with Avon Global Center]



NJA 2008 s. 482 II Supreme Court of Sweden (2008)

Sexual violence and rape

["A person who, otherwise than as provided in Section 1 first paragraph, induces another person by unlawful coercion to undertake or endure a sexual act, shall be sentenced for sexual coercion to imprisonment for at most two years. / This shall also apply to a person who carries out a sexual act other than provided for in Section 1 second paragraph with a person, under the conditions otherwise specified in that paragraph./ If a crime provided for in the first or second paragraph is considered gross, a sentence to imprisonment for at least six months and at most six years shall be imposed for gross sexual coercion. In assessing whether the crime is gross, special consideration shall be given to whether more than one person assaulted the victim or in any other way took part in the assault or whether the perpetrator otherwise exhibited particular ruthlessness or brutality. (…)" Chapter 6, Section 1 of the Swedish Penal Code.]  [A person who, by violence or threat involving or appearing to the threatened person as imminent danger, forces the latter to have sexual intercourse or to engage in a comparable sexual act, shall be sentenced for rape to imprisonment for at least two and at most six years. (…)" Chapter 6, Section 2 of the Swedish Penal Code.]  In this case, the Supreme Court held that sexual coercion had occurred when a man masturbated to another person that was asleep. The victim was at the time 17 years old and had provisionary employment at the perpetrator's company. The incident took place in a hotel room during a trip arranged by the company. The Supreme Court found that the victim was, at the time of the crime, in such helpless condition as referred to in Chapter 6, Section 1 Swedish Penal Code but that the sexual act was not comparable to sexual intercourse. The circumstance that the victim was 17 years old and worked for the perpetrator was not considered to make the offense gross. The Supreme Court therefore found the accused guilty of sexual coercion. [Decision on file with Avon Global Center]